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GENERAL CONDITIONS 101 DEFINITION AND ABBREVIATIONS 101.1.00 DEFINITIONS Whenever the following terms are used in these specifications, in the Agreement, in any documents or other instruments pertaining to construction where these specifications govern, the intent and meaning shall be interpreted as follows, all of which are applicable to both the singular and plural thereof. AGREEMENT The written agreement between Owner and Contractor covering the work to be performed; other Contract Documents are attached to the Agreement. ADDENDUM A supplement to any of the Contract Documents issued, in writing, after advertisement of but prior to the opening of bids for an Agreement. ADVERTISEMENT An announcement inviting bids for work to be performed and materials to be furnished. AS APPROVED The words "as approved" unless otherwise qualified, shall be understood to be followed by the words "by the City Engineer". BIDDER Whenever the word "bidder" occurs in these Contract Documents, the work shall signify any person, firm, partnership, or corporation submitting a proposal on this project. BID SECURITY The certified check, cashier's check, or surety bond, which is required to be submitted with the Proposal to ensure execution of the Agreement and the furnishing of the required bonds. CHANGE ORDER A written order issued after the execution of the Agreement to the Contractor and signed by City of Bend authorizing an addition, deletion or revision in the work, or an adjustment in the Contract Price or the Contract Time issued after execution of the Agreement. CITY The City of Bend, including its duly authorized representatives. CITY COUNCIL The City Council of the City of Bend. CITY ENGINEER See Engineer. CONTRACT See Agreement. CONTRACT DOCUMENTS The "Contract Documents" consist of the invitation to bid, the instructions to bidders, the proposal, the agreement, the general conditions, the supplementary conditions, the specifications, and the plans including all modifications thereof incorporated into the documents before their execution, and including all other requirements incorporated by specific reference thereto. These form the Agreement. CONTRACT ITEM (PAY ITEM) A specific unit of work for which a price is provided in the proposal. CONTRACT PRICE The total amount payable to Contractor under the Agreement. CONTRACTOR The person or persons, co-partnership, corporation, or joint venture who have entered into an agreement with the City of Bend as party or parties of the second part, or his or their legal representatives. The word "Contractor", although used herein as terming an individual, shall be taken to mean the Contractor, his agents, employees, officials, subcontractors, or anyone connected with the work herein set forth on behalf of the Contractor. CONTRACT TIME The number of calendar or workdays stated in the Contract Documents, allowed for completion of the work, including authorized time extensions. If a calendar date of completion is stated in the proposal, in lieu of a number of calendar days, the contract shall be completed by that date. DAY Unless otherwise stated, the term "day" shall be taken to mean a calendar day of 24 hours, beginning at 12:00 midnight. Saturday, Sundays and holidays shall be included. DEVELOPER A private entity who has expressed the intention of providing, or who has undertaken the providing, of some facility, structure, or like project to be accepted for maintenance and ownership by the City of Bend. DRAWINGS See Plans. ENGINEER Wherever the word "Engineer" occurs in these Contract Documents, the word shall signify the "City Engineer or his authorized representative" and vice versa. EQUIPMENT All machinery, together with the necessary supplies for upkeep and maintenance, and also all tools and apparatus necessary for the proper construction and acceptable completion of the work. INSPECTOR An authorized representative of the City Engineer assigned to make all necessary inspections and/or test of the work performed or being performed, or of the materials furnished or being furnished by the City of Bend. INTENTION OF TERMS Whenever, in these specifications or on the plans, the words "require", permitted", "ordered", "designated", "prescribed" or words of the like import are used, it shall be understood that the requirements, permission, order, designation, or prescription of the City Engineer is intended; and similarly, the words "approved", "acceptable", "satisfactory", or words of like import shall mean approved by, or acceptable to, or satisfactory to the City Engineer, subject in each case to the final determination of the City of Bend. LABORATORY The official testing laboratories of the City of Bend or such other laboratories as may be designated by the City Engineer. LEGAL HOLIDAY The following, subject to subsequent change by law, are legal holidays: Sunday, New Year's Day, Martin Luther King Jr. Day, President's Day, Memorial Day, Independence Day, Labor Day, Veteran's Day, Thanksgiving, Christmas, and those days declared as holidays by public proclamation. When a legal holiday, other than Sunday falls on a Sunday, the immediate following Monday is a legal holiday. MATERIALS Any substance incorporated in the project and equipment and other material consumed in the performance of work. MODIFICATION (a) A written amendment of the Contract Documents signed by both
parties. NOTICE OF AWARD The written notice by City of Bend to the apparent successful Bidder stating that upon compliance with the conditions precedent to be fulfilled by him within the time specified, City of Bend will execute and deliver the Agreement to him. NOTICE TO PROCEED A written notice to the Contractor fixing the date on which to begin the actual contract work. If applicable, the Notice to Proceed shall state the date on which the Contract Time will commence to run. OR EQUAL The term "or equal" shall be understood to indicate that the "equal" product is the same or better than the product named in function, performance, reliability, quality, and general configuration. Determination of equality in reference to the project design requirements will be made by the City Engineer. Such "equal" products shall not be purchased or installed by the Contractor without the City Engineer's written approval. OWNER The legal entity or contracting agency for which the work is being performed. Where applicable the Developer is the owner until such time as the improvements are accepted by the City Council for maintenance. PAYMENT BOND The approved form of security furnished by the Contractor and his surety as a guaranty that he will pay in full all bills and accounts for materials and labor used in the construction of the work. PERFORMANCE BOND The approved form of security furnished by the Contractor and his surety as a guaranty that the Contractor will complete the work in accordance with the terms of the Agreement. PLANS The term "Plans" refers to the official plans, profiles, cross sections, elevations, details and other working drawings and supplementary drawings, or reproductions thereof, signed by the City Engineer, which show the location, character, dimensions, and details of the work to be performed. Plans may either be bound in the same book as the balance of the Contract Documents or bound in separate sets, and are a part of the Contract Documents regardless of the method of binding. PROPOSAL The written offer of the bidder submitted on the approved proposal form setting forth the prices for the work to be performed. PROPOSAL GUARANTY See Bid Security. REFERENCE SPECIFICATIONS Bulletins, standards, rules, methods of analysis or test, codes and specifications. SPECIAL PROVISIONS See SPECIAL SPECIFICATIONS. SPECIAL SPECIFICATIONS Requirements peculiar to the project; and changes and modifications to the standard specifications. Special specifications are used interchangeably with special provisions. SPECIFICATIONS The terms, provisions and requirements contained herein as supplemented by such special conditions as may be necessary, pertaining to either the materials and/or work to be furnished under the Agreement. STANDARD SPECIFICATIONS Codes, rules and regulations referred to in these specifications by basic name or designation only, shall be considered to be of the latest issue with all amendments as of the date of these specifications. Applicable portions of such shall become a part of these Contract Documents. STRUCTURES Facilities such as bridges, culverts, catch basins, inlets, retaining walls, cribbing, storm and sanitary sewer lines, water lines, utility cables and pipelines, underdrains, electrical ducts, manholes, handholes, lighting fixtures and bases, transformers, flexible and rigid pavements; buildings, vaults, and other man-made features that may be encountered in the work and not otherwise classified herein. SUBCONTRACTOR An individual, firm, or corporation having a direct contract with the Contractor or any other subcontractor for the performance of a portion of the work on the project, or those who furnish material for the project. SUPERINTENDENT The Contractor's executive representative who is present on the work during progress, authorized to receive and fulfill instructions from the City Engineer, and who shall supervise and direct the construction. SURETY A corporation, licensed to conduct the business of surety in the State of Oregon, and named in the current list of approved sureties published by the U. S. Treasury Circular 570. All bonds signed on behalf of the Surety must be accompanied by a certified copy of the authority to act. If the Surety on any bond furnished by the Contractor is declared bankrupt or becomes insolvent, or its right to do business is terminated in the State of Oregon, or it ceases to meet the requirements outlined above, Contractor shall within five (5) days thereafter, substitute another Bond and Surety, both of which shall be acceptable to City of Bend. WORK Wherever the word "work" occurs in these Contract Documents, the word shall signify all materials, labor, tools and all appliances, machinery and appurtenances necessary to perform and complete everything specified in the Contract Documents or shown on the Plans, and such additional items of labor, material, and equipment not specifically indicated or described which can be reasonably inferred as belonging to the item described or indicated and as required by good practice to provide a complete and satisfactory system or structure. As used herein, "provide" shall be understood to mean "furnish and install". WORKING DAY Any and every calendar day excluding Saturdays and legal holidays. Unless otherwise permitted a working day occurs between the hours of 7:00 am and 5:00 pm. WRITTEN NOTICE Wherever the term "Written Notice" occurs in these Contract Documents, the term shall signify a written communication delivered in person to the individual, or to a member of the firm, or to an officer of the corporation for whom it is intended, or, if delivered or sent by registered mail, to the last business address known to him who gives the notice. 101.2.00 ABBREVIATIONS Wherever in these specifications the initials only of a society or association are used, the following organizations are referred to: AASHTO: American Association of State Highway and Transportation
Officials 102 CONTRACT DOCUMENTS 102.1.00 INTENT OF CONTRACT DOCUMENTS The Contract Documents are complimentary, and what is called for by any one shall be as binding as if called for by all. The intent of the Contract Documents is to describe a complete project to be constructed in accordance with the Contract Documents. Any work that may be reasonably inferred from the Contract Documents as being required to produce the intended result shall be supplied whether or not it is specifically called for. Materials or work described in words which so applied have a well known technical and trade meaning shall be held to refer to such recognized standards. 102.2.00 INCONSISTENCIES AND OMISSIONS Any inconsistency, conflict, error or omission found in the Contract Documents shall be reported to the City Engineer in writing immediately and before proceeding with the work affected thereby; however, Contractor shall not be liable to City of Bend or City Engineer for his failure to discover any conflict error or inconsistency in the Contract Documents. The City Engineer will clarify inconsistencies or omissions, in writing, within a reasonable time. The decision of the City Engineer shall be final. In resolving inconsistencies among two or more sections of the Contract Documents, precedence shall be given in the following order:
Figure dimensions on plans shall take precedence over scale dimensions. Detailed plans shall take precedence over general plans. 102.3.00 ALTERATIONS AND CHANGE ORDERS The City of Bend, without invalidating the Agreement, may at any time or from time to time, order extra work or make changes by altering, adding to, or deducting from the work. All such work shall be authorized by Change Order and executed under the conditions of the original Agreement, except that claim by either party for time and payment increase or decrease caused thereby shall be adjusted at the time of ordering such change. The City Engineer may authorize minor changes in the work not involving extra cost and not inconsistent with the overall intent of the Contract Documents. Additional work performed by Contractor, without authorization of a Change Order, will not entitle him to an increase in the Contract Price or an emergency endangering life or property. If the work is reduced by alterations, such action shall not constitute a claim for damages based on loss of anticipated profits. 102.4.00 VERIFICATION OF DATA It is understood and agreed that the Contractor has, by careful examination, satisfied himself as to the nature and location of the work; the conformation of the grounds; the character, quality, and quantities needed preliminary to and during the prosecution of the work; the general and local conditions; and all other matters which can in any way affect the work under this Agreement. No verbal agreement or conversation with any officer, agent, or employee of the City of Bend, either before or after the execution of this Agreement, shall affect or modify any of the terms or obligations herein contained. 102.5.00 DOCUMENTS TO BE KEPT AT THE WORK SITE The Contractor shall keep one copy of the Contract Documents at the work site, in good condition, available to the City Engineer and to his representatives. The Contractor shall maintain on the job site, and make available to the City Engineer upon request, one current marked-up set of the Design Drawings which accurately indicate all approved variations in the completed work that differ from the design information shown on the Drawings. 102.6.00 DOCUMENTS TO BE FURNISHED The City Engineer will furnish to the Contractor, on request, five copies of the Contract Documents and five sets of full scale Plans. Additional copies of Contract Documents or Plans may be obtained on request by paying the actual cost of reproducing the Contract Documents or Plans. 102.7.00 OWNERSHIP OF DRAWINGS All Plans, Drawings, Specifications and copies hereof furnished by the City Engineer are the City's property and are not to be used on other work and, with the exception of the signed contract set, are to be returned on request at the completion of the work. Any reuse of these materials without specific written verification by the City Engineer will be at the risk of the user and without any liability or legal expense to the City Engineer. All models are the property of the City of Bend. 103 THE CITY ENGINEER 103.1.00 AUTHORITY OF THE CITY ENGINEER The City Engineer shall be the City of Bend's representative during the construction and he shall observe the work in progress on behalf of the City of Bend. This general inspection of the construction will not, however, relieve the construction Contractor(s) from his (their) obligation to conduct comprehensive inspections and to maintain full responsibility for the techniques and sequences of construction, the safety precautions incidental thereto, and for performing the construction work in accordance with the Contract Documents. He shall also have authority to reject all work and materials which do not conform to the Agreement. The City Engineer will, within a reasonable time after their presentation to him, make decisions, in writing, on all claims of the City of Bend or the Contractor and on all other matters relating to the execution and progress of the work or the interpretation of the Contract Documents. The City Engineer's estimates and decisions shall be the condition precedent to the right of the Contractor to any action on the Agreement and to any right to receive additional money under the Agreement. The Engineer shall have the authority to order changes in the work or extra work, as provided in the paragraph "Alterations and Change Orders" of the Section CONTRACT DOCUMENTS. The City Engineer will not be responsible and has not been retained or compensated to provide design and construction review services relating to the Contractor's safety precautions or to means, methods, techniques, sequences or procedures required for the Contractor to perform his work. 103.2.00 ENGINEER’S REPRESENTATIVES Assistants may be assigned to various portions of the work by the City Engineer. It is understood that such assistants shall have the power, in the absence of the City Engineer, to issue clarifications and make decisions within the limitations of the authority of the City Engineer. The authority of such assistants shall, however, be limited to the particular portion or phase of the work to which they are assigned and by the particular duties assigned to them. Upon request, the assignment and duties of the inspector or inspectors will be provided in writing. 103.2.01 AUTHORITY AND DUTIES OF THE INSPECTOR The engineer may appoint assistants to inspect all materials used and all work done. Such inspection may extend to any or all parts of the work and to the preparation or manufacture of the materials to be used. The inspectors will not be authorized to revoke, alter, enlarge or relax the provision on the work to check the necessary lines and grades and to keep the engineer informed as to the progress of the work and the manner in which it is being done; also to call the attention of the Contractor to any infringements upon plans or specifications, but failure of the inspector or the engineer to call the attention of the Contract to faulty work or infringements upon the plans or specifications shall not constitute acceptance of said work. An inspector will not be authorized to approve or accept any portion of the work or to issue instructions contrary to the plans and specifications. The inspector will have authority to reject defective material and to suspend any work that is being improperly done, subject to the final decision of the engineer. The inspector will exercise such additional authority as may, from time to time, be especially delegated to him by the engineer. 103.3.00 INSPECTION City Engineer and/or Inspector will make periodic visits to the site to observe the progress and quality of the executed work and to determine, in general, if the work is proceeding in accordance with the Contract Documents. He will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the work. His efforts will be directed toward providing assurance for the City of Bend that the completed project will conform to the requirements of the Contract Documents. On the basis of his on-site observations as an experienced and qualified design professional, he will keep City of Bend informed in the progress of the work and will endeavor to guard City of Bend against defects and deficiencies in the work of Contractors. 103.4.00 REJECTED MATERIAL Any material condemned or rejected by the City Engineer, or his authorized inspector, because of non-conformity with the Contract Documents shall be removed at once from the vicinity of the work by the Contractor at his own expense, and the same shall not be used on the work. 103.5.00 UNNOTICED DEFECTS The City Engineer will not be responsible for the acts or omissions of Contractor or any subcontractor or other persons at the site performing any of the work. Any defective work or material that may be discovered by the City Engineer before the final acceptance of work, or before final payment has been made, or during the guarantee period, shall be removed and replaced by work and materials which shall conform to the provision of the Contract Documents. Failure on the part of the Engineer to condemn or reject bad or inferior work or materials shall not be construed to imply acceptance of such work or materials. 103.6.00 RIGHT TO RETAIN IMPERFECT WORK If any part or portion of the work done or material furnished under this Agreement shall prove defective and not in accordance with the Plans and Specifications, and if the imperfection in the same shall not be of sufficient magnitude or importance as to make the work dangerous or undesirable, or if the removal of such work will create conditions which are dangerous or undesirable, the City of Bend shall have the right and authority to retain such work. In such case, if acceptance occurs after approval of final payment, an appropriate amount shall be paid by Contractor to City of Bend. 103.7.00 LINES AND GRADES Lines and grades shall be the responsibility of the Contractor and shall be established under the supervision of a Registered Professional Surveyor or Registered Engineer, licensed in the State of Oregon. 103.8.00 DETAIL DRAWINGS AND INSTRUCTIONS The City Engineer will furnish, with reasonable promptness, additional instructions by means of drawings or otherwise, as are necessary for the proper execution of the work. All such drawings and instructions will be consistent with the Contract Documents. 103.9.00 SHOP DRAWINGS AND SAMPLE SUBMITTALS The Contractor shall submit, in quadruplicate, to the Engineer for this review, such shop drawings, electrical diagrams, and catalog cuts for fabricated items and manufactured item (including mechanical and electrical equipment) required by the Contract Documents. Drawings shall be submitted in sufficient time to allow the City Engineer not less than ten (10) regular working days for examining the drawings. The drawings shall be accurate, distinct, and complete, and shall contain all required information, including satisfactory identification of items, units, and assemblies in relation to the contract drawings and specifications. Unless otherwise approved by the City Engineer, shop drawings shall be submitted only by the Contractor, who shall indicate by a signed stamp on the drawings, or other approved means, that he (the Contractor) has checked the shop drawings, and that the work shown is in accordance with contract requirements and has been checked for dimensions and relationship with work of all other trades involved. The practice of submitting incomplete or unchecked shop drawings for the City Engineer to correct or finish will not be acceptable, and shop drawings which, in the opinion of the City Engineer, clearly indicate that they have not been checked by the Contractor will be considered as not complying with the intent of the Contract Documents and will be returned to the Contractor for resubmission in the proper form. When the shop drawings have been reviewed by the City Engineer, two sets of submittals will be returned to the Contractor appropriately stamped. If major changes or corrections are necessary, the drawing may be rejected and one set will be returned to the Contractor with such changes or corrections indicated, and the Contractor shall correct and resubmit the drawings, in quadruplicate, unless otherwise directed by the City Engineer. No changes shall be made by the Contractor to resubmitted shop drawings other than those changes indicated by the City Engineer. The review of such drawings and catalog cuts by the City Engineer shall not relieve the Contractor from responsibility for correctness of dimensions, fabrication details and space requirements, or for deviations from the contract drawings or specifications, unless the Contractor has called attention to such deviations in writing by a letter accompanying the drawings and the City Engineer approves the change or deviations in writing at the time of submission, nor shall review by the City Engineer relieve the Contractor from the responsibility for errors in the shop drawings. When the Contractor does call such deviations to the attention of the City Engineer, the Contractor shall state in his letter whether or not such deviations involve any deduction or extra cost adjustments. The approval of a separate item as such will not indicate approval of the assembly in which the item functions. Contractor shall also submit, to City Engineer for approval with such promptness as to cause no delay in work, all samples required by the Contract Documents. All samples shall be clearly identified as to material, manufacturer and any pertinent catalog number if applicable, and the use for which intended. Where a shop drawing or sample submittal is required by the Contract Documents, no related work shall be commenced until the submission has been approved by the City Engineer. 104 THE CONTRACTOR AND HIS EMPLOYEES 104.1.00 CONTRACTOR, AN INDEPENDENT AGENT The Contractor shall perform all work under this Agreement as an Independent Agent and shall not be considered as an agent of the City of Bend, nor shall the Contractor's subcontractors or employees be sub-agents of the City of Bend. 104.2.00 SUBCONTRACTING The Contractor shall include, in the space provided in the Letter for Employment of Subcontractors, the legal corporate names of all proposed subcontractors and the portion of the work that these proposed subcontractors or other persons or organizations shall perform. The Contractor agrees that he is as fully responsible to the City of Bend for the acts and omissions of his subcontractors and of persons either directly or indirectly employed by them as he is for the acts and omissions of persons directly employed by him. Nothing contained in the Contract Documents shall create any contractual relation between any subcontractor and the City of Bend. Subcontractors shall be in accordance with, and the Contractor shall be bound by, the following provisions:
104.3.00 INSURANCE AND LIABILITY The Contractor shall purchase and maintain insurance, naming the City as co-insured for protection from the claims set forth below which may arise out of or result from the Contractor's operations under the Contract, whether such operations be by the Contractor or by any subcontractor, or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable:
The insurance shall be written for not less than any limits of liability specified in the Contract Documents or required by law, whichever is greater. The specified limit of liability shall be a combined single limit of $1,000,000 per occurrence. The aggregate limit must be $2,000,000 in the event Contractor's liability insurance is subject to new commercial general liability coverage form. Claims-made coverage forms are not acceptable. Certificates of Insurance acceptable to the City of Bend shall be filed with the City of Bend prior to commencement of the work. These certificates shall contain a provision that coverage afforded under the policies will not be cancelled until at least thirty days prior written notice has been given to the City of Bend. The Contractor's liability and property insurance with a completed Operations Endorsement shall be maintained after the completion of the project for the full warranty period. Nothing contained in these insurance requirements is to be construed as limiting the extent of the Contractor's responsibility for payment of damages resulting from his operations under this Agreement. When the construction is to be accomplished within a public or private right-of-way requiring special insurance coverage, the Contractor shall conform to the particular requirements and provide the required insurance. The Contractor shall include in his liability policy all endorsements that the said authority may require for the protection of the authority, its officers, agents, and employees. Insurance coverage for special conditions, when required shall be provided as set forth in the SUPPLEMENTARY CONDITIONS. In case of the breach of any provision of this article, the City of Bend, at its option, may take out and maintain at the expense of the Contractor such insurance as the City of Bend may deem proper and may deduct the cost of such insurance from any monies which may be due or become due the Contractor under this Agreement. 104.4.00 CONTRACTOR’S AND SUBCONTRACTOR'S INSURANCE The Contractor shall not commence work under this Agreement until he has obtained all the insurance required hereunder and such insurance has been reviewed by the City of Bend, nor shall the Contractor allow any subcontractor to commence work on his subcontract until all similar insurance required for that portion of the work has been so obtained. Review of the insurance by the City of Bend shall not relieve or decrease the liability of the Contractor hereunder. 104.5.00 NO PERSONAL LIABILITY OF PUBLIC OFFICIALS In carrying out any of the provisions hereof in or exercising any authority granted by the Agreement, there will be no personal liability upon any public official. 104.5.01 PROPERTY INSURANCE (IN COURSE OF CONSTRUCTION) Unless otherwise provided, the Contractor shall purchase and maintain property insurance upon the entire Work at the site to the full insurable value thereof. This type of insurance is required primarily for structures. Street, water and sewer projects would not require structure insurance. This insurance shall include the interests of the Owner and Sub-subcontractors in the Work and shall insure against the perils of fire and extended coverage and shall include "all risk" insurance for physical loss or damage including, without duplication of coverage, theft, vandalism and malicious mischief. Contractor and sub-contractors will be financially responsible for their own equipment, tools, machinery, and supplies during the course of this project. If the Owner finds it necessary to occupy or use a portion or portions of the Work prior to Substantial Completion thereof, Contractor shall obtain the consent of the insurance company or companies providing the property insurance, by endorsement to the policy or policies. No insurance shall be canceled or lapsed on account of such partial occupancy or use. In the event Contractor neglects, refuses or fails to provide the insurance required under the Contract Documents, or if such insurance is canceled for any reason, the Owner shall have the right but not the duty to procure the same, and the cost thereof shall be deducted from monies then due or thereafter to become due to Contractor. 104.6.00 SUPERVISION The Contractor shall keep on the project, during its progress, competent supervisory personnel. The Contractor shall designate, in writing, before starting work, an authorized representative who shall have complete authority to represent and to act for the Contractor. The Contractor shall give efficient supervision to the work, using his best skill and attention. The Contractor shall be solely responsible for all construction means, methods, techniques, and procedures, and for providing adequate safety precautions and coordinating all portions of the work under the Agreement. The Contractor shall be responsible to see that the finished work complies accurately with the Contract Documents. 104.7.00 RESPONSIBILITY OF THE CONTRACTOR Indebtedness incurred for any cause in connection with this work must be paid by the Contractor, and the City of Bend is hereby relieved at all times from any indebtedness or claim other than payments under terms of the Agreement. 104.8.00 PROPERTY RIGHTS IN MATERIAL Nothing in the Agreement shall be construed as vesting in the Contractor any right to the property or in the material used after they have been attached or affixed to the work or the soil and accepted by the City of Bend. All such materials shall become the property of the City of Bend upon being so attached or affixed and accepted. 104.9.00 RECEPTION OF ENGINEER'S DIRECTION The superintendent, or other duly authorized representative of the Contractor, shall represent the Contractor in his absence; and all directions given to him shall be as binding as if given to the Contractor. 104.10.00 FACILITIES AND SANITATION If required by law, the necessary sanitary conveniences, properly secluded from public observation, shall be erected and maintained by the Contractor at all times while men are employed on the work; and the use of such sanitary conveniences shall be strictly enforced. The location of such conveniences shall be approved by the City Engineer. 104.11.00 EMPLOYEES The Contractor shall employ only competent skillful workers to do the work. The Contractor shall at all times enforce strict discipline and good order among his employees. The Contractor shall comply with all applicable labor rules, wage scales, and regulations, including nondiscriminatory laws, of the Government of the United States, the State, County, and City or Town in which the work is to be done. 105 OREGON LAW FOR PUBLIC CONTRACTS 105.1.00 DESCRIPTION When the Contract Documents concern public works for the state or any county, municipality, or political subdivision created by its laws, the applicable statutes of the State of Oregon shall apply. For this reason, Sections 279.011 through 279.363 of the Oregon Revised Statutes, as amended or superseded, including the latest additions and revisions, are incorporated by reference as part of these Contract Documents. It is understood and agreed that all parties to this Agreement shall determine the contents of these applicable statutes and comply with their provisions throughout the performance of the Agreement. See also the City's "Standard Provisions." 106 SAFETY The City of Bend or City Engineer are not responsible to provide design and construction review services relating to the Contractor's safety precautions or to means, methods, techniques, sequences or procedures required for the Contractor to perform his work. The Contractor will be solely and completely responsible for conditions of the work site, including safety of all persons and property during performance of the work. This requirement will apply continuously and not be limited to normal working hours. Safety provisions shall conform to all applicable State, County, and local laws, ordinances and codes, and to the current safety regulations as set forth in the Oregon Safety Codes adopted and published by the Workmen's Compensation Board, Salem, Oregon. The Contractor shall also comply with "U.S. Department of Labor Occupational Safety and Health Act," the "Construction Safety Act" administered by the U.S. Department of Labor, the "Manual of Accident Prevention in Construction" published by the Associated General Contractors of America, and the "Manual on Uniform Traffic Control Devices", except where these are in conflict with state laws, in which case the more stringent requirements shall be followed. The Contractor shall maintain at his office or other well known place at the work site, all articles necessary for giving first-aid to the injured, and shall establish the procedure for the immediate removal to a hospital or a doctor's care of all persons (including employees) who may be injured on the work site. The duty of the City Engineer to conduct construction review of the Contractor's performance is not intended to include review of the adequacy of the Contractor's safety measures in, on, or near the construction site. If death or serious injuries or serious damages are caused, the accident shall be reported immediately by telephone or messenger to both the City Engineer and the City of Bend. In addition, the Contractor must promptly report in writing to the City Engineer all accidents whatsoever arising out of, or in connection with, the performance of the work whether on, or adjacent to, the site, giving full details and statements of witnesses. If any claim is made by anyone against the Contractor or any subcontractor on account of any accident, the Contractor shall promptly report the facts in writing to the City Engineer, giving full details of the claim. 107 PROTECTION OF PROPERTY The Contractor shall adopt every practical means and comply with all laws, ordinances, and regulations in order to minimize interference to traffic and inconveniences, discomfort, and damage to the public, including the provision of adequate dust control measures. All obstructions to traffic shall be guarded in accordance with the "Manual on Uniform Traffic Control Devices". The Contractor shall not trespass upon private property and shall be responsible for all injury or damage to persons or property, directly or indirectly, resulting from his operations in completing this work. He shall comply with the laws and regulations of the City of Bend, county, and state, relating to the safety of persons and property, and will be held responsible and required to make good any injury or damage to persons or property caused by carelessness or neglect on the part of the Contractor or subcontractor(s), or any agent or employee of either during the progress of the work and until its final acceptance. The Contractor shall protect against injury any pipes, conduits, utilities, lawns, gardens, shrubbery, trees, fences, or other structures or property, public and/or private, encountered in this work except as stipulated elsewhere herein. The Contractor shall be responsible and liable for any damage to such pipe, structures, and property. The Contractor shall protect this work and materials from damage due to the nature of the work, the elements, carelessness of other contractors, or from any cause until the completion and acceptance of the work. All loss or damages arising out of the nature of the work to be done under the terms of these Contract Documents, or from any unforeseen obstruction or defects which may be encountered in the prosecution of the work, or from the action of the elements, shall be sustained by the Contractor. In an emergency affecting the safety of life or of the work or of adjoining property, the Contractor, without special instruction or authorization from the City Engineer, is hereby obligated to act, at his discretion, to prevent such threatened loss or injury; and he shall so act, without appeal, if so instructed or authorized. Any compensation claimed by the Contractor on account of emergency work shall be determined by agreement or as covered under the section 'Change Orders'. 108 MATERIALS AND APPLIANCES Unless otherwise stipulated, the Contractor shall provide and pay for all materials, labor, water, tools, equipment, light, power, transportation, and other facilities necessary for the execution and completion of the work. Unless otherwise specified, all materials shall be new, of U.S. Domestic manufacture, and both workmanship and materials shall of good quality. The Contractor shall, if required, furnish satisfactory evidence as to the kind and quality of materials. All materials and equipment shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance with the instructions of the applicable manufacturer, fabricator or processors, except as otherwise provided in the Contract Documents. If the specifications, law, ordinance or applicable rules or regulations permit Contractor to furnish or use a substitute that is equal to any material or equipment specified and if Contractor wishes to furnish to use a proposed substitute, he shall make written application to City Engineer for approval of such a substitute certifying in writing that the proposed substitute will perform adequately the functions called for by the general design, be similar and of equal substance to that specified and be suited to the same use and capable of performing the same function as that specified; stating whether or not its incorporation in or use in connection with the project is subject to the payment of any license fee or royalty; and identifying all variations of the proposed substitute from that specified and indicating available maintenance service. No substitute shall be ordered or installed without the written approval of City Engineer who will be the judge of equality and may require Contractor to furnish such other data about the proposed substitute as he considers pertinent. No substitute shall be ordered or installed without such performance guarantee and bonds as City of Bend may require which shall be furnished at Contractor's expense. In selecting and/or approving equipment for installation in the project, the City of Bend and City Engineer assume no responsibility for injury or claims resulting from failure of the equipment to comply with applicable national, state, and local safety codes or requirements, or the safety requirements of a recognized agency, or failure due to faulty design concepts, or defective workmanship and materials. 108.1.00 MATERIALS FURNISHED BY THE CITY OF BEND All materials and/or services furnished by the City of Bend shall be obtained by the Contractor as indicated in these Contract Documents. The cost of handling and placing City of Bend furnished materials shall be included in the price paid for the Agreement item involving such material. 108.2.00 SAMPLES, TESTING AND INSPECTION All materials to be incorporated in the work shall be subject to sampling, testing, and approval. Samples furnished by the Contractor shall be representative of the materials to be used. The City Engineer may select samples or may require that samples to be delivered to and tested as required by the Specifications at the laboratory of the City Engineer, at no additional cost to the City of Bend. All sampling and testing of materials shall be done in accordance with the latest designated standard methods of AASHTO, ASTM, etc, or in accordance with special methods designated in the Specifications. The Contractor shall furnish, without extra charge, the necessary test pieces and samples, including facilities and labor for obtaining the same, as requested by the Engineer. When required, the Contractor shall furnish certificates of tests of materials and equipment made at the point of manufacture by a recognized testing laboratory. The City Engineer and his representatives and authorized representatives of public agencies shall at all times have access to the work wherever it is in preparation or progress, and the Contractor shall provide facilities for such access and for inspection, including maintenance of temporary and permanent access routes. If the Specifications, laws, ordinances, or any public authority require any work to be specially tested or approved, the Contractor shall give the City Engineer timely notice of its readiness for inspection. If the inspection is by authority other than the City Engineer's, the City Engineer shall be given timely notice of the date fixed for such inspection. Inspections by the City Engineer will be promptly made, and where practicable, at the source of supply. If any work should be covered without approval or consent of the City Engineer, it shall, if required by the City Engineer, be uncovered for examination at the Contractor's expense. Re-examination of questioned work may be ordered by the Engineer; and, if so ordered, the work shall be uncovered by the Contractor. If such work be found not in accordance with the Contract Documents, the Contractor shall correct the defective work at no additional cost to the City of Bend. Neither observations by City Engineer nor inspections, tests, or approvals by persons other than Contractor shall relieve Contractor from his obligations to perform work in accordance with requirements of the Contract Documents. 108.3.00 CONTRACTOR'S RESPONSIBILITY FOR MATERIALS 108.3.01 RESPONSIBILITY FOR MATERIAL FURNISHED BY CONTRACTOR The Contractor shall be responsible for all material furnished by him. All such material shall be examined by a City Representative and any material not meeting specifications, or that is defective in manufacture, or that has been damaged after delivery, shall be replaced by the Contractor at his expense. 108.3.02 RESPONSIBILITY FOR MATERIAL FURNISHED BY CITY The Contractor's responsibility for material furnished by the City shall begin upon Contractor's acceptance at the point of delivery to him. All such material shall be immediately examined, and material defective in manufacture and/or otherwise damaged shall be rejected by the Contractor at the time and place of delivery to him, to be replaced by the City. Once accepted by the Contractor, defective and/or damaged material discovered prior to final acceptance of the work shall be removed by the Contractor and he shall replace, at his own expense, the defective material. In such case the Contractor shall furnish all labor, equipment and material incidental to replacement and necessary for the completion of the work to the satisfaction of the Engineer. 108.4.00 CONSTRUCTION STAKING 108.4.01 SCOPE The purpose of this section is to define the responsibilities for construction surveying. All survey work shall be conducted by or under the supervision of a Registered Professional Land Surveyor or Professional Engineer, licensed in the State of Oregon. The Contractor will be responsible for providing all construction staking as required to complete the work. 108.4.02 STAKES Construction stakes and stakes which are reference points for construction work shall be conspicuously marked. It shall be the responsibility of the Contractor to inform his employees and his subcontractors of their importance and the necessity for their preservation. The Contractor shall provide vertical and horizontal construction staking in the proximity of the work. Construction staking shall be provided at 50' intervals on tangent and 25' intervals on curve. The guard stakes should contain the following information:
108.4.03 FLAGGING CODE A color code may be established during the course of the project indicating specific colors for the various kinds of stakes to be set. 108.4.04 SEWER Both gravity and pressure sewer lines shall be construction staked by means of an offset line with pipe invert cut information provided. Finish grades shall be provided as required. Manholes shall have two reference points (swing-ties) indicating the left of the manhole, flow invert elevation, and finish grade. Upon the completion of subgrade, the top of the manhole shall be staked with the finish grade and elevation by means of four offset stakes in a cross pattern so that the street slope and cross slope will be matched perfectly. Services shall be staked as required by the engineer. 108.4.05 WATER Water lines shall be staked by means of an offset line at the appropriate intervals. Fire hydrants shall have two reference points (swing-ties) indicating the left of the fire hydrants. Finish grades shall be provided as required. Services shall be staked as required by the engineer. 108.4.06 STREET Prior to commencing construction, clearing limits shall be established. Where a significant (greater than 3') cut or fill is required for subgrade, slope stakes and construction staking for subgrade will be provided. Curb line shall be staked by means of an offset line no more than 6' offset from the face of curb, showing the cut or fill to the finish work. Said stakes shall be protected and saved for a period of five (5) working days after construction of curbs to enable the Inspector to approve the alignment and grade. In addition to the above staking requirements, catch basins, points of curvature and tangency, and ends of curb radii shall be provided with a curb stake. Base rock shall be staked by painting an appropriate target on the curb and providing construction stakes (blue tops) on leftline. On streets of 48' or greater width, blue tops will also be required at the quarter points. Blue tops will also be provided at the gutter line for the leftline and gutter lines of any intersecting street. 108.4.07 STRUCTURES All structures shall be staked to the line and grade as shown on the plans or as directed by the engineers. 109 CONTRACT LEGALITIES 109.1.00 PERMITS AND LICENSES The Contractor shall keep himself fully informed of all local ordinances, State and Federal laws, ordinances and regulations, in any manner affecting the work herein specified. He shall at all times comply with said ordinances, laws, and regulations, and protect and indemnify the City of Bend and officers and agents against any claim or liability arising from or based on the violation of such laws, ordinances, or regulations. Permits and licenses of a temporary or construction nature including government charges and inspection fees necessary for the prosecution of the work shall be secured and paid for by the Contractor. Easements and rights-of-way shall be secured and paid for by the City of Bend, unless otherwise specified in the Supplementary Conditions. 109.2.00 ROYALTIES AND PATENTS The Contractor shall pay all royalty and license fees. He shall defend all suits or claims for infringement of any patent rights and shall save the City of Bend harmless from loss on account thereof, except that the City of Bend shall be responsible for all such loss when a particular process or the product of a particular manufacturer or manufacturers is specified; but if the Contractor has information that the process or article specified is an infringement of a patent, he shall be responsible for such loss unless he promptly gives such information to the City Engineer or City of Bend. 109.3.00 TAXES AND CHARGES The Contractor agrees to withhold and pay any and all withholding taxes, whether State or Federal, sales tax, and to pay all Social Security charges and also all State Unemployment Compensation charges, and to pay or cause to be withheld, as the case may be, any and all taxes, charges, or fees or sums whatsoever which are now or may hereafter be required to be paid or withheld under any laws. 109.4.00 HOLD HARMLESS The Contractor shall be responsible for any and all injury or liability to any and all persons or property caused directly or indirectly by reason of any and all activities by Contractor in the performance of this Agreement; and further agrees to indemnify, save harmless and defend the City, its officers, agents and employees from and against all claims suits, actions, damages, costs, losses and expenses in any manner resulting from, arising out of or connected with any such injury or liability. Contractor hereby acknowledges that he is not an officer, employee or agent of the City of Bend and expressly waives any right he might claim to indemnification and defense from City pursuant to the provisions of ORS 30.287. 109.5.00 UNFORESEEN DIFFICULTIES The Contractor shall protect his work and materials from damage due to the nature of the work, the elements, carelessness of other contractors, or from any cause whatever until the completion and acceptance of the work. All loss or damage arising out of a nature of the work to be done under these Contract Documents, or from any unseen obstruction or defects which may be encountered in the prosecution of the work, or from the action of the elements shall be sustained by the Contractor. 109.6.00 CONTRACTOR’S RIGHT TO STOP WORK OR TERMINATE CONTRACT If the work should be stopped under an order of any court or other public authority for a period of three (3) months, through no act or fault of the Contractor or of anyone employed by him; or if the City Engineer should fail to issue any estimate for payment within thirty (30) days after it is due; or if the City of Bend should fail to pay the Contractor within thirty (30) days after the time specified in the paragraph "Partial Payment" of the section "Payment" any sum certified by the City Engineer, then the Contractor may, upon fifteen (15) days written notice to the City of Bend and the City Engineer, stop work or terminate this Agreement and recover from the City of Bend payment for all work executed and any loss sustained upon any plant or material and reasonable profit and damages, unless said default has been remedied within said time. 109.7.00 CORRECTION OF DEFECTIVE WORK AFTER FINAL ACCEPTANCE (WARRANTY) All work shall be guaranteed for a period of one (1) year against defects in materials and workmanship. The Contractor hereby agrees to make, at his own expense, all repairs or replacements necessitated by defects in materials or workmanship supplied by him or his subcontractors that become evident within one (1) year after the date of written notice from the City Engineer recommending final acceptance of the entire project, or entire schedule, by the City of Bend. The Contractor also agrees to hold the City of Bend harmless from claims of any kind arising from damage due to said defects. The Contractor shall make all repairs and replacements promptly upon receipt of written orders for same from the City of Bend. If the Contractor fails to make the repairs and replacements promptly, the City of Bend may do the work, and the Contractor and his surety shall be liable for the cost thereof. 109.8.00 RELEASE OF LIENS On public projects, neither the final payment nor any part of the retained percentage shall become due until the Contractor submits to the City of Bend a signed affidavit, satisfactory to the City of Bend, stating that so far as he (the Contractor) has knowledge or information, all accounts for materials, labor, and incidentals in connection with the work have been paid in full. The form of affidavit shall be satisfactory to the City of Bend. If any lien remains unsatisfied after all payments are made, the Contractor shall refund to the City of Bend all monies that the latter may be compelled to pay in discharging such a lien, including all costs and a reasonable attorney's fee. 109.9.00 CONTRACTOR’S AND MANUFACTURER'S COMPLIANCE WITH STATE, OSHA, AND OTHER CODE REQUIREMENTS The completed work shall include all necessary permanent safety devices such as machinery guards and similar ordinary safety items required by the state and federal (OSHA) industrial authorities and applicable local and national codes. Further, any features of the work (including City of Bend selected equipment) subject to such safety regulations shall be fabricated, furnished, and installed in compliance with these requirements. Contractors and manufacturers of equipment shall be held responsible for compliance with the requirements included herein. 110 PROGRESS OF THE WORK 110.1.00 BEGINNING OF THE WORK Before work shall be started and materials ordered, the Contractor shall meet and consult with the City Engineer relative to materials, equipment, and all arrangements for prosecuting the work. The Contractor shall commence the work contemplated under these Contract Documents within three (3) days after the City of Bend's written notice to proceed unless otherwise notified by the City Engineer, and shall complete the work within the time specified in the Agreement, it being expressly understood and agreed that the time of beginning, rate of progress, and time of completion of the work are of the essence of this Agreement. 110.2.00 PROSECUTION OF THE WORK The work shall be prosecuted at such time, and in or on such part or parts of the project as may be required, to complete the project as contemplated in the Contract Documents. Time is essence of this contract. Upon starting construction, the Contractor shall diligently and continuously pursue completion of the work with adequate crew and equipment. Should the Contractor, without the express approval of the Engineer, reduce his effort, it shall be considered a failure of the Contractor to complete the work in the time agreed upon. As such it shall fall under the provisions of 110.9.00 LIQUIDATED DAMAGES and liquidated damages may be assessed for each day of reduced operations. It is expressly understood and mutually agreed between all parties to the Agreement that the City Engineer shall not determine or be responsible for construction methods. The Contractor shall perform the work and take such precautions as he may deem necessary to complete the project so all work will be in conformance with the Contract Documents within the Contract time. If the Contractor desires to carry on work at night or outside the regular hours, he may submit application to the City Engineer; but he shall allow ample time to enable satisfactory arrangements to be made for inspecting the work in progress. If granted permission, he shall light the different parts of the work in a manner satisfactory to the City Engineer and shall comply with all regulations of the City or State or other public body having jurisdiction. The Contractor shall complete the work called for under the contract in all parts and requirements within the number of workdays, or before the completion date, as set forth in the contract The Contract workday requirement shall take precedence over other completion dates that may be referred to in these documents. Where such case applies, a notice to proceed may be issued to the Paving Contractor when individual streets have been constructed and approved for base rock by the Engineer. Once the base rock has been delivered and spread, it shall be the Paving Contractor's responsibility to maintain the surface, including blading and watering as may be required. It is the intent of these specifications that paving commence immediately following the placement of base rock. 110.3.00 COOPERATION WITH UTILITIES The Contractor is responsible for coordinating with utility owners. Before the Contractor performs any excavation he is to contact the Central Oregon Underground Utilities Coordinator at 389-6676 at least forty-eight (48) hours prior to excavation. The Contractor shall conform to the requirements of ORS 757.541 to 757.571. 110.4.00 MAINTAINING TRAFFIC The Contractor will be responsible to maintain two-way traffic at all times unless otherwise specified. The streets shall be open for two-way traffic at all times when the Contractor is not performing work unless otherwise specified. Approaches to all properties accessing to the project shall be maintained by the Contractor at all times except for short periods necessary to the progress of the construction. 110.4.01 PUBLIC SAFETY AND CONVENIENCE The Contractor shall conduct the project with proper regard for the safety and convenience of the public. When the project involves use of public ways, Contractor shall provide flagmen when directed and install and maintain means of free access to all fire hydrants, service stations, warehouses, stores, houses, garages and other property. Private residential driveways shall be closed only with approval of the Engineer or specific permission of the property owner. The Contractor shall not interfere with normal operation of public transit vehicles unless otherwise authorized. The Contractor shall not obstruct or interfere with travel over any public street or sidewalk without approval. Where detours are necessary, they shall be maintained with good surface and shall be clearly marked. The Contractor shall provide open trenches and excavations with adequate barricades of an approved type which can be seen from a reasonable distance. At night, the Contractor shall backfill all open work and mark areas with signs and lighted barricades (Type A Low Intensity Flashing Warning Light on a type I or II barricade, typical) in accordance with the MUTCD. The Contractor shall install and maintain all necessary signs, lights, flares, barricades, railings, runways, stairs, bridges and facilities. The Contractor shall observe all safety instructions received from the Engineer or governmental authorities, but following of such instructions shall not relieve the Contractor from the responsibility or liability for accidents to workers or damage or injury to person or property. Emergency traffic such as police, fire and disaster units shall be provided reasonable access to the work area at all times. The Contractor shall be liable for any damages which may result from failure to provide such reasonable access or failure to notify the appropriate authority. 110.5.00 ASSIGNMENT Neither party to the Agreement shall assign the Agreement or sublet it as a whole without the written consent of the other; nor shall the Contractor assign any monies due or to become due to him hereunder without the previous written consent of the City of Bend. 110.6.00 CITY OF BEND'S RIGHT TO DO WORK: If the Contractor should, in the opinion of the City Engineer, neglect to prosecute the work properly or should neglect or refuse at his own cost to take up and replace work as shall have been rejected by the City Engineer, then the City of Bend shall notify the Surety of the condition and after ten (10) days written notice to the Contractor and the Surety, or without notice if an emergency or danger to the work or public exists, and without prejudice to any other right which the City of Bend may have under the Agreement, take over that portion of the work which has been improperly executed and make good the deficiencies and deduct the cost thereof from the payments then or thereafter due the Contractor. 110.7.00 CITY OF BEND'S RIGHT TO TERMINATE AGREEMENT If the Contractor should be adjudged a bankrupt; or if he should make a general assignment for the benefit of his creditors; or if a receiver should be appointed to account of his insolvency; or if he should persistently or repeatedly refuse or should fail, except in cases for which extension of time is provided, to supply enough properly skilled workmen or proper materials; or if he should fail to make prompt payment to subcontractors for material or labor; or persistently disregards laws, ordinances, or the instructions of the City Engineer; or otherwise be guilty of substantial violation of any provision f the Agreement or any laws or ordinance; then the City of Bend, upon the certification of the City Engineer that sufficient cause exists to left such action, may without prejudice to any other right or remedy, and after giving the Contractor and Surety seven (7) days written notice, transfer the employment for said work from the Contractor to the Surety. Upon receipt of such notice, such Surety shall enter upon the premises and take possession of all materials, tools, and appliances thereon for the purpose of completing the work included under this Agreement and employ, by Contractor or otherwise, any qualified person or persons to finish the work and provide the materials therefore, in accordance with the Contract Documents, without termination of the continuing full force and effect of this Agreement. In case of such transfer of employment to such surety, the Surety shall be paid in its own name on estimates according to the terms hereof without any right of the Contractor to make any claim for the same or any part thereof. In lieu of the foregoing, if the City of Bend so elects, he may terminate the employment of the Contractor and take possession of the premises and of all materials, tools, and appliances thereon and finish the work by whatever method he may deem expedient. In such case, the Contractor shall not be entitled to receive any further payment until the work is finished. If the expense of completing the Agreement, including compensation for the additional managerial and administrative services, shall exceed such unpaid balance, the Contractor shall pay the difference to the City of Bend. The expense incurred by the City of Bend, as herein provided and the damage incurred through the Contractor's default shall be certified by the City Engineer. Where Contractor's services have been so terminated by City of Bend, said terminations shall not affect any rights of City of Bend against Contractor then existing or which may thereafter accrue. Any retention or payment of monies by City of Bend due Contractor will not release Contractor from liability. Upon seven (7) days written notice to Contractor and City Engineer, City of Bend, may, without cause and without prejudice to any other right or remedy, elect to abandon the Project and terminate the Agreement. In such case, Contractor shall be paid for all work executed and any expense sustained plus a reasonable profit. 110.8.00 DELAYS AND EXTENSION OF TIME If the Contractor shall be delayed at any time in the progress of the work by any act or neglect of the City of Bend or the City Engineer, or of any employee of either; or by any separate contractor employed by the City of Bend; or by changes ordered in the work; or by strikes, lockouts, fire, unavoidable casualties, or any cause beyond the Contractor's control which justified the delay, or by delay authorized in writing by the City Engineer, then the date for completion of the work shall be extended. Within 14 days after the Contractor submits to the City Engineer a written request for an extension of time, the City Engineer will determine the number of days extension due the Contractor. The City of Bend will make the final decision on all requests for extension of time. No such extension shall be made for delays occurring more than seven (7) days before claim therefor is made in writing to the City Engineer. In case of a continuing cause of delay, only one claim is necessary. If no schedule or agreement stating the date upon which supplemental drawings shall be furnished by the City Engineer is made, then no claim for delay shall be allowed the Contractor on account of failure to furnish drawings until two (2) weeks after demand for such drawings, and not then unless such claim be reasonable. No extension of time will be granted to the Contractor for delays occurring to parts of the work that have no measurable impact on the completion of the total work under this Agreement. No extension of time will be considered for weather conditions normal to the area in which the work is being performed. Unusual weather conditions, if determined by the City Engineer to be of a severity that would stop all progress of the work, may be considered as cause for an extension of Agreement completion time. Delays in delivery of equipment or material purchased by the Contractor or his subcontractors (including City of Bend-selected equipment) shall not be considered as a just cause for delay. The Contractor shall be fully responsible for the timely ordering, scheduling, expediting, delivery, and installation of all equipment and materials. The Contract Time may only be changed by a Change Order. 110.9.00 LIQUIDATED DAMAGES Should the Contractor fail to complete the work, or any part thereof, in the time agreed upon in these Contract Documents or within such extra time as may have been allowed for delays by extensions granted as provided in these Contract Documents, the Contractor shall reimburse the City of Bend for the additional expense and damage for every day specified that the Agreement remains uncompleted after the date of specified completion. It is agreed that the amount of such additional expense and damage incurred by reason of failure to complete the work shall be as given in the following schedule for each workday the work exceeds the number of workdays specified.
The said amounts are hereby agreed upon as liquidated damages for the loss to the City of Bend on account of expense due to the employment of engineers, inspectors, and other employees after the expiration of the time of completion, and on account of the value of the operation of the work dependent thereon. It is expressly understood and agreed that this amount is not to be considered in the nature of a penalty, but as liquidated damages which have accrued against the Contractor; and the City of Bend is authorized to deduct the amount of such damages from any monies due the Contractor for work performed or material furnished under this Agreement; and the Contractor and his Sureties shall be liable for any excess. 110.10.00 OTHER CONTRACTS The City of Bend reserves the right to let other contracts in connection with this work. The Contractor shall afford other contractors reasonable opportunity for the introduction and storage of their materials and execution of their work and shall properly connect and coordinate his work with theirs. If any part of the Contractor's work depends, for proper execution or results, upon the work of any other contractor, the Contractor shall inspect and promptly report to the City Engineer any defects in such work that render it unsuitable for such proper execution and results. His failure to so inspect and report shall constitute an acceptance of the other contractor's work as fit and proper for the reception of his work, except as to defects which may develop in the other contractor's work after execution of his work. 110.11.00 USE OF PREMISES City of Bend shall furnish, as indicated in the Contract Documents and not later than the date when needed by Contractor, the lands upon which the work is to be done, rights-of-way for access thereto, and such other lands which are designated for the use of Contractor. Easements for permanent structures or permanent changes in existing facilities will be obtained and paid for by the City of Bend, unless otherwise specified in the Contract Documents. If Contractor believes that any delay in City of Bend furnishing these lands or easements entitles him to an extension of the Contract Time, he may make claim therefor. Contractor shall provide for all additional lands and access thereto that may be required for temporary construction facilities or storage of materials and equipment. The Contractor shall confine his equipment, the storage of materials, and the operation on his workmen to limits shown on the plans or indicated by law, ordinances, permits, or directions of the City Engineer, and shall not unreasonably encumber the premises with his materials. 110.12.00 USE OF COMPLETED PORTIONS The City of Bend shall have the right to take possession of and use any completed or partially completed portions of the work, notwithstanding the time for completing the entire work or such portions which may not have expired. Such taking possession and use shall not be deemed an acceptance of any work not completed in accordance with the Contract Documents. If such prior use increases the cost of the work, or delays the completion of the work, the Contractor shall be entitled to extra compensation or an extension of time, or both. Should such condition or conditions prevail, the Contractor shall submit his claim for additional compensation or extension of time, in writing, to the City Engineer. The City Engineer will review the claim and determine its validity. 110.13.00 CUTTING AND PATCHING The Contractor shall do all cutting, fitting, or patching of his work that may be required to make its several parts come together properly and fit it to receive or be received by work of other contractors shown upon or reasonable implied by the plans. 110.14.00 CLEANING UP Cleaning up shall be a continuing process from the start of work to final acceptance of the project. The Contractor shall, at all times, at his own expense and without further order keep property on which work is in progress free from accumulations of waste material or rubbish caused by employees or by the work, and at all times during the construction period shall maintain structure sites, rights-of-way, adjacent property, and the surfaces of streets and roads on which work is being done in a safe condition for the Contractor's workers, and the public. Accumulation of waste materials that might constitute a fire hazard will not be permitted. Spillage from the Contractor's hauling vehicles on travelled public or private roads and parking areas shall be promptly cleaned up. Upon completion of the construction, the Contractor shall, at his own expense, remove all temporary structures, rubbish, and waste materials resulting from his operations. Upon failure of the Contractor to provide cleanup within 24 hours of being so directed by the Engineer in writing, the City, or an agent retained by the City, may complete the cleanup and the cost thereof plus 10% for handling shall be deducted from any payment due the Contractor. 110.15.00 CHANGES IN QUANTITY The City of Bend reserves the right to increase or decrease quantities without limit or to omit portions of the work without invalidating said proposal or re-negotiating the unit bid price. 110.16.00 PERFORMANCE TESTING Operating equipment and systems shall be performance tested in the presence of the City Engineer to demonstrate compliance with the specified requirements. Performance testing shall be conducted under the specified design operating conditions or under such simulated operating conditions as recommended or approved by the City Engineer. Such testing shall be scheduled with the City Engineer at least one (1) week in advance of the planned date for testing and include a factory representative on site. 110.17.00 SUBSTANTIAL COMPLETION DATE The City Engineer may, at his sole discretion, issue a written notice of substantial completion for the purpose of establishing the starting date for specific guarantees, and to establish the date that the City of Bend will assume the responsibility for the cost of operating such portions of the project. Said notice shall not be considered as final acceptance of any portion of the work or relieve the Contractor from completing the remaining work within the specified time and in full compliance with the Contract Documents. All equipment contained in the work, plus all other components necessary to enable the City of Bend to operate the facility in the manner that was intended, shall be complete including acceptable testing as specified in these Contract Documents on the substantial completion date. The City of Bend shall have the right to exclude Contractor from the project after the date of substantial completion, but City of Bend shall allow Contractor reasonable access to complete or correct remaining items of work. 111 PAYMENT 111.1.00 BASIS OF PAYMENT In consideration of the faithful performance of all the covenants, stipulations, and conditions in these Contract Documents, the City of Bend covenants and agrees to pay the Contractor the amount bid as adjusted when so stipulated in the Contractor's Proposal on the basis of the unit prices named in the contractor's Proposal for the work actually performed as determined by the final estimate of the City Engineer, together with any amounts due for extra work not classified under the items listed in the Contractor's Proposal as provided in the paragraph "Extra Work" of these GENERAL CONDITIONS; less any deduction for failure to complete the work within the time specified; and less any deductions for claims and damages paid by the City of Bend due to acts or omissions of the Contractor and for which he is liable under this Agreement. 111.2.00 PARTIAL PAYMENT At least ten (10) days before each progress payment falls due, but not more often than once a month, Contractor shall submit to City Engineer for review an application for payment filled out and signed by Contractor covering the work completed as of the date of the application and accompanied by such data and schedules as City Engineer may reasonably require. Partial payment is subject to the terms of the Document Holder Information and project Schedule of Bid Items which take precedent over all other terms. Contractor warrants and guarantees that title to all work, materials and equipment covered by any application for payment, will pass to City of Bend at the time of payment free and clear of all liens, claims, security interests and encumbrances. City Engineer will, within ten (10) days after receipt of each application for payment, either indicate in writing his approval of payment and present the application to City of Bend, or return the application to Contractor indicating in writing his reasons for refusing to approve payment. In the later case, Contractor may make the necessary corrections and resubmit the application. The amount of said application for payment, after deducting five percent (5%) and all previous payments, shall be due and payable to the Contractor not more than thirty (30) days after the last day of said month. The five percent (5%) deducted, as above set forth, shall be withheld by the City of Bend to insure faithful completion of the work under the terms of the Contract Documents and to provide a fund for the payment of any claims which may accrue against the City of Bend because of some act or omission on the part of the Contractor. Nothing contained in this article shall be construed to affect the right, hereby reserved, to reject the whole or any part of the aforesaid work should such work be later found not to comply with any of the provisions of the Contract Documents. All estimated quantities of work for which progress payments have been made are subject to review and correction on the final estimate. Payment by the City of Bend and acceptance by the Contractor of progress payments based on periodic estimates of quantities of work shall not, in any way, constitute acceptance of the estimated quantities used as the basis for computing the amounts of the progress payments. Furthermore, on all Agreements for the construction, reconstruction, maintenance or repair of any public work in the State of Oregon, no payment will be made to the Contractor until he files with the City of Bend the signed Wage Certification Form certifying that he has paid not less than the prevailing rate of wages as required by Chapter 279, ORS, as set forth in General Conditions. 111.3.00 CHANGE ORDERS Payment or credit for any alterations covered by a Change Order shall be determined by one or a combination of methods set forth in 111.3.01, 11.3.02, or 111.3.03 below: 111.3.01. UNIT PRICES If applicable, those unit prices stipulated in the Proposal, or unit prices negotiated and mutually acceptable to the Contractor and City of Bend. 111.3.02. LUMP SUM A total sum for the work negotiated and mutually acceptable to the Contractor and City of Bend. In 011.3.01 and 011.3.02 above, Contractor's quotations for Change Orders shall be in writing and firm for a period of forty-five (45) days. Any compensation agreed upon, and subsequently paid by the City of Bend for work defined in a Change Order shall be deemed to include all costs and expenses related to such work, including the costs and expenses of a direct, indirect, and consequential nature, or otherwise, and it is specifically understood and agreed that no additional compensation may be subsequently sought or charged by the Contractor for the work covered by the applicable Change Order. The City of Bend's request for quotations on alterations to the work shall not be considered authorization to proceed with the work prior to the issuance of a formal Change Order, nor shall such request left any delay in existing work. 111.3.03. FORCE ACCOUNT WORK If the method of payment cannot be agreed upon prior to the beginning of the work, and the City of Bend or the City Engineer directs that the work be done by written Change Order or on a force account basis, then the Contractor shall furnish labor equipment, and materials necessary to complete the work in a satisfactory manner and within a reasonable period of time. For the work performed, payment will be made for the documented actual cost of the following:
To costs under 011.3.03 FORCE ACCOUNT WORK, there shall be added the following fixed fees for the Contractor or subcontractor actually performing the work:
The added fixed fees shall be considered to be full compensation, covering the cost of general supervision, overhead, profit, and any other general expense. The City of Bend reserves the right to furnish such materials and equipment, as it deems expedient, and the Contractor shall have no claim for profit or added fees on the cost of such materials and equipment. For equipment under Item C above, rental or equivalent rental cost will be allowed for only those days or hours during which the equipment is in actual use. Rental and transportation allowances shall not exceed the current rental rates prevailing in the locality. The rentals allowed for equipment will, in all cases, be understood to cover all fuel, supplies, repairs, and renewals, and no further allowances will be made for those items, unless specific agreement to that effect is made. The Contractor shall maintain his records in such a manner as to provide a clear distinction between the direct costs of work paid for on a force account basis and the costs of other operations. The Contractor shall furnish the City Engineer report sheets in duplicate of each day's force account work no later than the working day following the materials used, and shall cover the direct cost of labor and the charges for equipment rental, whether furnished by the Contractor, subcontractor, or other forces. The daily report sheets shall provide names or identifications and classifications of workers, the hourly rate of pay and hours worked, and also the size, type, and identification number of equipment and hours operated. Material charges shall be substantiated by valid copies of vendors' invoices for materials used in the alterations covered by Change Orders. Such invoices shall be submitted with the daily report sheets, or, if not available, they shall be submitted with subsequent daily report sheets. Said daily report sheets shall be signed by the Contractor or his authorized agent. To receive partial payments and the final payment for force account work, the Contractor shall submit in a manner approved by the City Engineer, detailed and complete documented verification of the Contractor's and any of his subcontractor's actual current costs involved in the force account work pursuant to the issuance of an approved Change Order. Such costs shall be submitted within thirty (30) days after said work has been performed. No payment will be made for work billed and submitted to the City Engineer after the thirty (30) day period has expired. No extra or additional work shall be performed by the Contractor, except in an emergency endangering life or property, unless in pursuance of a written Change Order. 111.4.00 CLAIMS If the Contractor claims that any instructions involve extra cost under this Agreement, he shall give the City Engineer and City of Bend written notice thereof within forty-eight (48) hours after the receipt of such instructions, and in any event before proceeding to execute the work. If such notification is not given, or if the City Engineer is not afforded proper facilities by the Contractor for keeping strict account of actual cost, then the Contractor hereby agrees to waive the claim for such additional compensation. Such notice by the Contractor, and the fact that the City Engineer has kept account of the cost as aforesaid, shall not in any way be construed as proving the validity of the claim. Claims for additional compensation shall be made in itemized detail and submitted, in writing, to the City of Bend and City Engineer within ten (10) days following completion of that portion of the work for which the Contractor bases his claim is found to be just. It shall be allowed and paid for as provided in the section covering Change Orders. 111.5.00 FINAL PAYMENT To receive final payment, the Contractor must do the following:
Within fifteen (15) days of written notice from the Contractor that the work has been completed, The City Engineer shall conduct a final inspection of the work. If the work has been completed to the satisfaction of the City Engineer, he shall submit a certificate of acceptance of the completed work, together with a final estimate of the amount due the Contractor under this Agreement, less any amount to be withheld by the City of Bend to ensure guarantees, as may be provided in the Supplementary Conditions. The City of Bend shall, within thirty (30) days, pay to the Contractor all monies due him under the conditions of the Agreement upon the following:
111.6.00 MATERIALS DELIVERED TO THE WORK SITE BUT NOT USED Monthly progress payments will include compensation for materials received on the site during the pay period but not incorporated in the work providing they are properly stored and protected and the Contractor submits to the City Engineer, in writing, ten (10) days prior to the end of each pay period, a list, with costs supported by invoices from suppliers for such materials on the job for which the Contractor feels credit is due. Payments for material delivered to the site and not incorporated in the work during the pay period shall be understood to be advance payments for the Contractor's convenience. Final payment will be made only for materials actually incorporated in the work. Upon acceptance of the work, all materials stored on the site for which advance payments have been made, unless otherwise agreed upon in writing, shall revert to the Contractor and all remaining advance payments on materials shall be deducted from the final payment for the work. Advance payments by the City of Bend for materials on the site, but not incorporated in the work, shall not be considered as acceptance by the City of Bend and shall not relieve the Contractor from his responsibilities. 111.7.00 ACCEPTANCE OF FINAL PAYMENT CONSTITUTES RELEASE The acceptance by the Contractor of the final payment shall release the City of Bend and the City Engineer as agent of the City of Bend from all claims and all liability to the Contractor for all things done or furnished in connection with the work, and every act of the City of Bend and others relating to or arising out of the work. No payment, however, final or otherwise, shall operate to release the Contractor from obligations under these Contract Documents. 111.8.00 NO WAIVER OF RIGHTS Neither the inspection by the City of Bend, through the City Engineer or any of his employees, nor any order by the City of Bend for payment of money, nor any payment for, or acceptance of, the whole or any part of the work by the City of Bend or City Engineer, nor any extension of time, nor any possession taken by the City of Bend or its employees, shall operate as a waiver of any provision of these Contract Documents, or any power herein reserved to the City of Bend, or any right to damages herein, nor shall any waiver of any breach in this Agreement be held to be a waiver of any other or subsequent breach. |